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Justice Department rules food allergies may be legal disability

Ruling leaves restaurants, schools vulnerable

By Mary Clare Jalonick Associated Press

Posted:
01/18/2013 10:57:01 PM MST

Updated:
01/18/2013 10:59:01 PM MST

Click photo to enlarge

This Nov. 11, 2008, file photo, shows gluten-free frozen pizza, just one of hundreds of items at Gluten Free Trading Co. in Milwaukee. Schools, restaurants and anyone else serving food are more vulnerable to legal threats over food sensitivities after the Justice Department determined that severe food allergies can be classified as disabilities under federal law. People who suffer from celiac disease don't absorb nutrients well and can get sick from the gluten found in wheat, rye and barley. Celiac is a diagnosed illness that is more severe than gluten sensitivity, which some people self-diagnose. Millions of people are buying gluten free foods because they say they make them feel better, even if they don t have a wheat allergy.

WASHINGTON -- Allergic to gluten? What about peanuts? Federal disabilities law may be able to help.

The Justice Department said in a recent settlement with a Massachusetts college that severe food allergies can be considered a disability under the law. That gives those who suffer from such allergies a new avenue in seeking menus that fit their diet. But some say it goes too far.

The decision leaves schools, restaurants and other places that serve food more exposed to legal challenges if they fail to honor requests for accommodations by people with food allergies.

Colleges and universities are especially vulnerable because they know their students and often require them to eat on campus, Eve Hill of the Justice Department's civil rights division says. But a restaurant also could be liable if it blatantly ignored a customer's request for certain foods and that person became ill, though that case might be harder to argue if the customer had just walked in off the street and was unknown to the restaurant, Hill says.

The settlement with Lesley University, reached last month but drawing little attention, will require the Cambridge institution to serve gluten-free foods and make other accommodations for students who have celiac disease. At least one student had complained to the federal government after the school would not exempt that student from a meal plan even though the student couldn't eat the food.

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"All colleges should heed this settlement and take steps to make accommodations," says Alice Bast, president and founder of the National Foundation for Celiac Awareness. "To our community this is definitely a precedent."

Under the agreement, Lesley University says it will not only provide gluten-free options in its dining hall but also allow students to pre-order, provide a dedicated space for storage and preparation to avoid contamination, train staff about food allergies and pay a $50,000 cash settlement to affected students.

"We are not saying what the general meal plan has to serve or not," Hill says. "We are saying that when a college has a mandatory meal plan they have to be prepared to make reasonable modifications to that meal plan to accommodate students with disabilities."

The agreement says that food allergies may constitute a disability under the Americans With Disabilities Act, if they are severe enough. The definition was made possible under 2009 amendments to the disability law that concerned episodic impairments that substantially limit activity.

"By preventing people from eating, they are really preventing them from accessing their educational program," Hill says of the school and its students.

Not everyone agrees.

Hans von Spakovsky, a fellow at the conservative Heritage Foundation who worked in the civil rights division of the Justice Department under President George W. Bush, says the inclusion of food allergies is a major expansion of the disability law.

Von Spakovsky disagrees that food allergies are severe enough to prevent students from accessing education and says the costs could be substantial for colleges that already are battling backlash from high tuition costs.

"I certainly encourage colleges and universities to work with students on this issue, but the fact that this is a federal case and the Justice Department is going to be deciding what kind of meals could be served in a dining hall is just absurd," he says.

People who suffer from celiac disease don't absorb nutrients well and can get sick from the gluten found in wheat, rye and barley. The illness, which affects around 2 million Americans, causes abdominal pain, bloating and diarrhea, and people who have it can suffer weight loss, fatigue, rashes and other problems. Celiac is a diagnosed illness that is more severe than gluten sensitivity, which some people self-diagnose.

Ten years ago, most people had never heard of celiac disease. But awareness has exploded in recent years, for reasons that aren't entirely clear. Some researchers say it was under-diagnosed; others say it's because people eat more processed wheat products like pastas and baked goods than in past decades, and those items use types of wheat that have a higher gluten content.

Gluten-free diets have expanded beyond people with celiac disease. Millions of people are buying gluten-free foods because they say they make them feel better, even if they don't have a wheat allergy. Americans were expected to spend $7 billion on gluten-free foods last year.

With so many people suddenly concerned with gluten content, colleges and universities have had to make accommodations. Some will allow students to be exempted from meal plans, while others will work with students individually. They may need to do even more now as the federal government is watching.

"These kids don't want to be isolated," Bast says. "Part of the college experience is being social. If you can't even eat in the school cafeteria then you are missing out on a big part of college life."

Mary Pat Lohse, the chief of staff and senior adviser to Lesley University's president, says the school has been working with the Justice Department for more than three years to address students' complaints. She says the school has already implemented most parts of the settlement and will continue to update policies to serve students who need gluten-free foods.

"The settlement agreement provides a positive road map for other colleges and universities to follow," Lohse says.

Joan Rector McGlockton of the National Restaurant Association says that restaurants have taken notice of an increasing demand for gluten-free options, "drawing attention to the importance of providing these options as well as the preparation methods involved in serving these options."

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